Joseph, a US citizen, petitioned for his 28 year-old daughter, Eliza, in June 1997. However, after the approval of the petition, Joseph died in California in 1999 before Eliza’s priority date became current. In 2004, Eliza wanted to come to the United States to visit her mother, Louida, who is now a US citizen. Eliza hasn’t seen her mother for over 10 years. Louida is elderly and has health conditions, and Eliza’s sister, a law permanent resident (LPR) in the US, is unable to care for Louida full-time. Desperate to see her mother, Eliza pays a travel agent in Manila to get her a B-2 visa. Because Eliza is still single and will have difficulty getting a visa, the travel agent gives Eliza a Philippine passport and US visa in another’s person name. Eliza enters the US and overstays to take care of her mother. In late 2005, Louida petitions for Eliza, and the petition is approved in 2008. Recently, Louida became very ill and she passed away two months ago. Eliza’s petition from her mother will be current next month.
Is she still eligible for apply for an immigrant visa?
Generally, a petition dies with the petitioner, and is automatically revoked. However, certain surviving relatives may be eligible to reinstate the petition under Section 204(l) of the INA. Section 204(l) relief is applicable only where the principal beneficiary or any derivative beneficiary of an approved petition can demonstrate that his or her primary residence was in the US at the time of the petitioner’s death, and he or she continues to reside in the US thereafter. In addition, the beneficiary must have a substitute sponsor for the I-864 Affidavit of Support who is a US citizen or LPR spouse, sibling, child, in-laws, grandparent, grandchild, or legal guardian. Once the petition is reinstated by USCIS, the beneficiary is eligible to apply for an immigrant visa.
In Eliza’s case, she is eligible to have her mother’s petition reinstated under Section 204(l) because she can demonstrate her continuous residence in the US at the time of her mother’s death and thereafter, and her LPR sister can act as the substitute sponsor. However, Eliza may be ineligible for the immigrant visa because (1) she overstayed in the US and (2) she used fraudulent documents to enter the US. Applicants applying for adjustment of status to LPR in the US, who are not immediate relatives, must have maintained legal status in the US to be eligible for the immigrant visa. Luckily, Eliza is eligible for a waiver of her unlawful presence in the US under Section 245(i) of the INA through her father’s approved petition that was filed on her behalf before January 1, 1998.
As to the fraudulent visa, Eliza will need to apply for a separate waiver, known as the I-601 waiver. This waiver requires Eliza to demonstrate that her qualifying relative, a US citizen or LPR spouse or parent, will suffer from extreme hardship if she is not granted the immigrant visa. Generally, an applicant cannot demonstrate extreme hardship where the qualifying relative has died, such as in Eliza’s case. However, Section 204(l) provides an exception to this rule so long as applicant is Section 204(l) eligible. In these cases, the qualifying relative’s death is treated as the functional equivalent of a finding of extreme hardship.
(Atty. Lourdes S. Tancinco may be reached at law@tancinco.com, tancinco.weareph.com/old , facebook/tancincolaw, or at 1-888-930 9096 or 1 415 397 0808)
